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12/04/95 PEOPLE STATE ILLINOIS v. FRANCISCO VERA

December 4, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FRANCISCO VERA, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE SHELVIN SINGER, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Buckley and Braden, JJ., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

This case arises from a violent street encounter between a group of Mexican-Americans (Mexicans) and a group of Italian-Americans (Italians).

One of the Italian youths was shot and severely wounded by one of the Mexicans. Defendant Francisco Vera (Vera) was charged with attempted murder. After a bench trial, he was convicted of aggravated battery with a firearm. He was sentenced to 17 years' imprisonment. He appeals his conviction and sentence.

The trial judge was faced with evidence that required him to choose between two possibilities: either, as the State said, Vera was the shooter, or, as the defense urged, Humberto Beltran was the shooter.

The evidence was closely balanced. At times it was conflicting. The trial judge was entitled to relevant evidence that could tilt that balance. Because of serious errors by defense counsel, the trial judge was not able to consider evidence that could have changed the outcome of this case. For that reason, we reverse the defendant's conviction and remand the case for a new trial.

EVIDENCE

On September 2, 1990, Vera and his friends attended a social gathering at a church located near the intersection of Grand Avenue and Noble Street.

Late that evening, Joseph Dzialo, Richard Arcand, Luigi Franceschetti, Robert Otero, Michael and Orlando Cantenese, and Randy and Larry Leffew were hanging out at the Burger Baron restaurant, located at the corner of Grand and Noble.

According to the Italians, the Mexicans appeared to be fighting among themselves. The Italians crossed the street to investigate the commotion and ended up in a fight. According to the Mexicans, there was no fighting before the Italians crossed the street.

Joseph Dzialo testified that after he crossed the street he was shot in the face by a person he did not see. He was unarmed, did not fight, and did nothing to provoke anyone to shoot him. As a result of a bullet entering his skull, Dzialo lost his eye and underwent several reconstructive surgeries.

Kevin Mooney testified he lived in a building on the corner of Grand and Noble in September of 1990. At approximately 1 a.m. on September 3, Mooney heard a commotion that sounded like a fight. When he looked out his bedroom window, he saw approximately five men fighting, two Hispanic and three white. One of the Hispanic men stopped a dark blue van which had just made a right turn from Grand onto Noble. The van was double-parked on Noble Street. The driver of the van got out, produced a pistol, and fired two shots in the air. The shooter then walked around the front of the van, walked east towards the sidewalk, and fired three more shots in the direction of the fight.

Mooney made an in-court identification of Vera as the shooter. After Vera fired the shots, said Mooney, he got into the dark blue van and drove off. The other Hispanic men got into a white van, which was parked between two other cars, and attempted to leave.

Later that morning, Mooney viewed a lineup at the police station and identified Vera as the shooter. He testified that the male Hispanic gunman from the dark blue van was in his line of sight during the entire incident.

On cross-examination, Mooney testified that defense investigator John Rea visited him at home. Rea showed him two photographs. One was a photo of Humberto Beltran. The other was a photo of the defendant. The two men are facial look-alikes. Rea asked Mooney to identify the shooter. Mooney was unable to do so and told Rea the two men looked a great deal alike.

Robert Otero was at the Burger Baron on the evening of September 2, 1990. He testified that at approximately 1 a.m., he noticed a man walking across the street firing warning shots into the air with a pistol. Otero made an in-court identification of Vera as the shooter. Otero noticed a man with a chain on the ground, fighting with another Hispanic man. The man with the chain was a different individual than the shooter; however, he never saw the face of the man with the chain. Otero was five feet away from Vera when he saw him firing the gun. Otero identified Vera as the shooter in a police lineup early the morning of September 3rd.

Otero observed several vehicles parked on the street near the scene, including a white van and a blue van. The blue van arrived from westbound Grand Avenue, turned onto northbound Noble and eventually double parked on North Noble. He did not see the shooter before he saw the blue van.

Luigi Franceschetti testified that just prior to 1 a.m. on September 3, 1990, he was in a car with his girl friend near the Burger Baron. He heard some shots. Luigi jumped out of the car and ran to where the shooting was occurring. He saw a man with a gun. Luigi made an in-court identification of Vera as the man with a gun. Vera was wearing a white shirt. Luigi got a good look at Vera's face. When Luigi was 10 feet away from Vera, he saw him point the gun at Dzialo and shoot him. Vera ran to a white and tan van and got in it. Luigi punched the back window of the van. Randy Leffew broke the front windshield with a 2 x 4. The white van was parked next to the curb between two cars. The driver of the van moved the van back and forth rapidly in an attempt to get out from between the two cars.

Later that morning, Luigi and Larry Leffew went with the police to the 1300 block of Walton. At that location Luigi saw the white van. Luigi identified Vera as the man who had shot Dzialo.

Larry Leffew testified that at approximately 1:10 a.m. on September 3, 1990, he noticed "a bunch of [Hispanic] guys fighting" across from the Burger Baron parking lot. After Leffew walked across the street he saw a Mexican swinging a chain at Michael Catanese. A blue van pulled around the corner and a man wearing a white dress shirt exited the passenger side of the van with a gun. Leffew made an in-court identification of Vera as the man with the gun. Leffew said he saw Vera shoot Dzialo. Vera and some other individuals then jumped into a beige van parked nearby. The van started moving back and forth hitting cars. "They started shooting again out of the van." Randy Leffew hit the van's windshield with a 2 x 4 and Luigi Franceschetti punched his hand through the van's rear window.

Orlando Catanese was in the parking lot of the Burger Baron restaurant in the early morning of September 3, 1990. There seemed to be a disturbance on the northeast corner. Orlando went to where the fight was occurring and saw a man hit his brother with a chain. Orlando heard a gunshot and saw a man waving a gun around. He told the man it was not necessary to fire the gun and then turned around and saw Dzialo lying on the ground shot. Orlando did not see Dzialo in a fight with anyone or with any weapon. Orlando did not make an identification of the person who shot Dzialo.

On the morning of September 3, 1990, Chicago police officer Carlos Ramirez monitored a call regarding a man shot at Grand and Noble. Ramirez monitored a second call regarding the address of the owner of the vehicle involved in the shooting. Ramirez went to the 1300 block of Walton Street where he saw a white van with a brown stripe. The van had a broken windshield and there was blood inside. Vera was placed in custody. He was not wearing a shirt. At approximately 2 a.m. Larry Leffew and Luigi Franceschetti arrived at that location and each separately identified Vera as the man who shot Dzialo.

On September 3, 1990, Detective Foley was assigned to investigate the Dzialo shooting. At approximately 7:30 that morning Kevin Mooney and Robert Otero each identified Vera in a lineup at the police station.

After the admission of various photographs and certified documents of title relating to the white van, the State rested. The trial court denied ...


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